IN  THE 


gUPREJxlE  +  OeURT  +  ©P  +  lLiLIN©I& 


Northern  Grand   Division. 

September  Term,  A.  D.  1887. 


THE  PEOPLE  ex  Ki.L.  JOHN  P.  NEAL 


joiIX  A.   ROCHE,  Mayor,  et  al. 


PETITION  FOR  MANDAMUS. 


J.  L    HIGH, 

JESSE  B.  BARTON, 

Counsel  for  Petitioner. 


Chicago: 

HORACfc    OUONOliHUE.   BKIEf     AND    ABSTRACT    PRINTER.    53-55    DEARBORN    SI 


u 


'/////////////////////'//'///' 


State  of  I  llinois,  \ 

Northern  Grand  Division.  S  s^~ 

In  the  Supreme  Court — to  the   September  Term, 
A.    D.    1887. 

To  the  Honorable  the  Chief  Justice  and  Associate  Justices 

of  said   Court : 

Your  petitioner,  John  P.  Neal,  in  the  name  of  the 
People  of  the  State  of  Illinois,  respectfully  shows  to  the 
court,  that  the  city  of  Chicago  is  a  municipal  corporation, 
incorporated  under  the  general  act  for  the  incorporation 
of  cities  and  villages,  being  Chapter  24  of  the  Revised 
Statutes  of  Illinois;  that  the  Board  of  Education  of  the 
city  of  Chicago  is  a  municipal  corporation,  existing  under 
the  general  act  for  establishing  a  system  of  free  schools, 
being  Chapter  122  of  the  Revised  Statutes,  such  board 
having  charge  of  the  public  schools  of  the  city'  of  Chicago, 
with  all  the  powers  in  that  behalf  conferred  by  the  last 
named  act  ;  and  that  the  Chicago  and  Great  Western 
Railroad  Company  is  a  corporation,  organized  under  an 
act  of  the  General  Assembly,  approved  February  28,  1867, 
and  entitled  under  its  charter  and  under  certain  ordinances 
of  the  city  of  Chicago  to  build  a  railroad  within  such  city, 
from  the  western  limits  thereof  to  a  terminal  point  on 
Harrison  street,  between  Fifth  avenue  and  the  Chicago 
river. 

Your  petitioner  further  shows  that  the  premises  situ- 
ated in  said  city,  and  known  as  block  88,  and  the  north  half 
of  block  87,  of  the  School  Section  Addition  to  Chicago, 
were  a  part  of  the    sixteenth  section  originally  allotted   by 


act  of  Congress  to  the  use  of  public  schools,  and  that  fo.i 
main-  years  prior  to  the  negotiations  and  sale  hereinafter 
referred  to  the  title  to  said  premises  was  vested  in  the  city 
of  Chicago,  for  the  use  and  benefit  of  public  schools,  and 
said  premises  were  rented  by  the  Board  of  Education  of 
the  city  for  various  business  purposes,  the  leases  thereof 
being  executed  by  the  Board  of  Education,  and  the  rentals 
being  received  and  disbursed  by  said  board  for  the  use  of 
the  public  schools  of  the  city. 

Your  petitioner  further  shows  that  said  premises  are 
situated  between  Polk  and  Harrison  streets  and  Fifth  ave- 
nue and  the  Chicago  river,  in  said  city,  and  the  said  Chi- 
cago and  Great  Western  Railroad  Company,  having  built  its 
line  of  road  as  far  north  as  Polk  street  during  the  year  1886, 
and  being  desirous  of  occupying  the  premises  above  de- 
scribed for  depot  purposes,  negotiations  were  entered  into 
during  the  year  1 886  with  the  Board  of  Education  for  the  pur- 
chase by,  and  conveyance  to,  your  petitioner  of  said  prem- 
ises for  the  purposes  aforesaid;  that  such  negotiations  were 
conducted  on  behalf  of  the  Board  of  Education  by  its  Com- 
mittee on  School  Fund  property,  and  on  the  23d  day  of  Feb- 
ruary last  said  committee  submitted  its  report  to  the  Board 
of  Education,  recommending  the  sale  of  said  premises  to 
your  petitioner  upon  the  terms  and  conditions  set  forth  in 
such  report  as  follows,  namely: 

We  recommend  that  the  Board  of  Education  request 
the  Mayor  and  the  City  Council  of  the  City  of  Chicago  to 
consent  to  the  sale  and  to  execute  a  conveyance  of  block 
88,  and  the  north  half  of  block  87,  of  School  Section  Ad- 
dition to  Chicago,  to  John  P.  Neal,  upon  the  following 
terms: 

1  st.  That  said  Neal,  or  the  Chicago  and  Great 
Western  Railroad  Company,  shall  first  surrender  and  can- 


eel,  or  cause  to  be   surrendered  and    canceled,  all  existing 
leases  upon  said  property  or  any  part  thereof. 

2nd.  That  all  accrued  rentals  due  the  Hoard  of  Edu- 
cation under  said  leases,  and  all  taxes  or  special  assess- 
ments upon  the  improvements  upon  said  property,  be  first 
paid. 

3rd.  That  the  said  Neal  and  the  said  railroad  com- 
pany shall  cause  to  be  paid  to  the  Hoard  of  Education, 
until  the  first  day  of  Ala}-,  1888,  a  sum  equal  to  the 
amount  of  the  rentals  which  would  accrue  under  the  pro- 
visions of  said  leases  during  the  period  intervening,  as 
though  the}*  continued  in  force. 

4th.  That  the  said  John  P.  Neal  and  said  Chicago 
and  Great  Western  Railroad  Company  execute  and  deliver 
a  mortgage  to  the  Board  of  Education,  secured  upon  the 
property  conveyed,  for  the  sum  of  six  hundred  and  fifty 
thousand  dollars,  payable  in  fifty  years  after  the  first  day 
of  May,  A.  D.  1888,  with  interest  from  said  date  at  the 
rate  of  five  per  centum  per  annum,  payable  on  the  first 
day  of  November  and  May  in  each  and  every  year  during 
said  period  of  fifty  years,  which  mortgage  shall  contain 
covenants  and  conditions  satisfactory  to  the  Board  of 
Education. 

5th.  The  said  mortgage  shall  contain  a  provision 
that  in  case  of  default  in  the  payment  of  said  semi-annual 
interest,  or  in  the  payment  of  any  taxes  or  special  assess- 
ments lawfully  assessed  upon  said  premises,  or  any  part 
thereof,  and  such  default  in  either  case  shall  continue  for 
the  period  of  thirty  days  after  written  notice  to  said  com- 
pany, the  rate  of  interest  upon  the  principal  of  said  mort- 
gage shall,  for  the  remainder  of  said  period  of  fifty  years, 
be  eight  per  centum  per  annum  instead  of  five  per  centum 
per  annum. 

6th.  The  railroad  company  shall,  within  the  period 
of  two  years  from  Ma}-  I,  1887,  erect  permanent  passen- 
ger depot  buildings  upon  the  land  conveyed  for  railroad 
purposes,  at  a  cost  not  less  than  two  hundred  and  fifty 
thousand  dollars;  provided,  however,  that  the  time,  if  any, 
during  which  said  company  ma}-  be  delayed  in  the  com- 
pletion of  such  buildings  by  injunction  bona  fide  issued, 
or  prevented  by  labor  strikes  over  which  they  have  no  con- 


trol,  shall  not  be  treated  as  a  part  of  said  two  years,  and 
that  said  company  shall  execute  a  bond,  with  good  and 
sufficient  sureties,  in  the  penal  sum  of  $250,000,  condi- 
tioned upon  the  performance  of  the  requirement  of  this 
article,  to  be  approved  by  the  Board  of  Education. 

Your  petitioner  further  shows  that  said  report  was 
approved  and  adopted  by  the  Board  of  Education  on  the 
26th  day  of  February  last,  and  thereupon  said  Board  noti- 
fied the  City  Council  of  the  city  of  Chicago  of  such  action, 
and  transmitted  to  said  Council  the  report  of  said  com- 
mittee, embodying  the  terms  and  conditions  above  set 
forth,  and  numbered  one  to  six,  inclusive,  and  requested 
the  Mayor  and  Council  of  said  city  to  convey  said  prem- 
ises upon  such  terms  and  conditions;  that  the  communica- 
tion of  the  Board  of  Education  was  referred  by  the  City 
Council  to  its  Committee  on  Wharves  and  Public  Grounds, 
and  after  due  consideration  thereof  said  committee  sub- 
mitted to  the  Council,  on  the  16th  day  of  March  last,  the 
following  report: 

To  the  Mayor  and  Aldermen  of  the    City    of  Chicago,   in 

Council  assembled: 

Your  Committee  on  Wharves  and  Public  Grounds,  to 
whom  was  referred  communication  from  Board  of  Educa- 
tion, pertaining  to  the  sale  of  the  north  half  of  Block  87 
and  Block  88,  School  Section  Addition  to  Chicago,  hav- 
ing had  the  same  under  advisement,  beg  leave  to  report 
that  we  recommend  the  passage  of  the  following  order: 

Ordered,  that  the  Mayor  and  City  Comptroller  be 
and  they  are  hereby  authorized  and  directed  to  execute  a 
conveyance  of  the  north  half  of  Block  87  and  Block  88, 
School  Section  Addition  to  Chicago,  to  John  P.  Neal. 
upon  the  terms  and  conditions  as  set  forth  in  the  Board  of 
Education  communication  hereto  annexed. 

Your    petitioner    further    avers,   that  thereupon    said 

report  was   laid    over   and    published,   and    was   made    the 


special   order  for  the  next   regular  meeting  of  the  Council 

on  the  2  i  st  day  of  March  last,  upon  which  last-named  date 

the     following    proceedings    were     had     by    the    Council 

thereon : 

The  Chair  directed  that  the  special  order,  the  report 
of  the  Committee  on  Wharves  and  Public  Grounds,  on 
communication  from  Board  of  Education  pertaining  to 
sale  of  school  property  to  John  P.  Neal,  laid  over  and 
published  March   1 6,   1887,  be  now  taken  up. 

Aid.  Simons  moved  to  concur  in  the  report  and  pass 
the  order. 

The  motion  prevailed  by  yeas  and  nays,  as  follows: 
Yeas — Dixon,  Whelan,  Appleton,  Mueller,  Drew, 
Gile,  Wetherell,  Clarke,  Hillock,  Doerner,  Cullerton, 
Weber,  Hildreth,  Sheridan  (8th  ward),  Yore,  Mahoney, 
Wheeler,  Revere,  Deal,  Simons,  Kerr,  Hull,  Campbell, 
Lyke,  Landon,  Schack,  Ryan,  Eisfeldt,  Severin,  Cohan, 
Linn,  Carney,  Manierre,  Tiedemann — 34. 
Nays — Ernst — 1 . 

Your  petitioner  further  avers  that  the  terms  and  con- 
ditions to  which  reference  is  made  in  the  action  of  the 
City  Council  above  set  forth,  are  the  same  terms  and  con- 
ditions numbered  I  to  6,  inclusive,  and  embodied  in  the 
report  of  the  committee  on  school  fund  property  of  the 
Board  of  Education,  and  approved  and  adopted  by  said 
board,  as  hereinbefore  fully  set  forth,  and  no  other  terms 
or  conditions;  that  in  pursuance  of  such  terms  and  con- 
ditions of  sale  your  petitioner  procured  and  caused  to  be 
surrendered  and  canceled  all  outstanding  leases  upon  said 
premises,  at  an  expense  of  about  the  sum  of  $341,378; 
that  he  has  prepared  and  tendered  to  the  Board  of  Edu- 
cation a  mortgage  running  to  said  board  for  the  sum  of 
$650,000,  to  be  executed  by  your  petitioner  and  the  said 
railroad  company,  to  secure  the  purchase  money,  in  accord- 


ance  with  the  fourth  condition  above  set  forth,  which  mort- 
gage has  been  duly  approved  by  the  Board  of  Education 
and  is  now  ready  to  be  executed  by  your  petitioner  and  by 
said  railroad  company,  upon  receipt  of  the  conveyance  of 
said  premises;  that  he  has  also  procured  to  be  executed 
to  said  Board  of  Education  a  bond  in  the  sum  of 
$250,000  to  secure  the  erection  of  a  permanent  depot  upon 
said  premises,  in  accordance  with  the  sixth  condition  above 
set  forth,  which  bond  has  been  duly  approved  by  the 
Board  of  Education,  and  your  petitioner  and  the  said  rail- 
road company  have  in  all  things  complied  with  all  the 
terms  and  conditions  of  such  sale,  as  above  set  forth;  that 
by  reason  of  the  premises,  it  became  and  now  is  the  duty 
of  the  Mayor  and  Comptroller  of  the  city  of  Chicago  to 
execute  and  deliver  to  your  petitioner  a  conveyance  of  said 
premises  upon  the  delivery  of  such  mortgage  and  bond  to 
the  Board  of  Education;  that  John  A.  Roche  is  the  pres- 
ent Mayor,  and  Augustus  H.  Burley  is  the  present  Comp- 
troller of  said  city,  and  your  petitioner  has  caused  to  be 
prepared,  in  proper  form,  a  conveyance  of  said  premises 
to  your  petitioner,  to  be  executed  by  the  said  Mayor  and 
Comptroller,  and  has  tendered  the  same  to  them  for  ap- 
proval and  execution;  that  the  said  Mayor  and  Comptroller 
have  approved  of  the  form  of  such  conveyance,  but  refuse 
to  execute  the  same,  upon  the  sole  ground  that  the  mort- 
gage securing  the  purchase  money  of  said  premises  should 
be  executed  to  and  held  by  the  city  of  Chicago,  instead 
of  by  the  Board  of  Education,  and  that  the  installments  of 
interest  due  thereon,  as  well  as  the  principal  thereof,  upon 
maturity,  should  be  paid  to  said  city,  to  be  held  by  it  for 
the  use  of  public   schools,    and    that   the   city  should  have 


7 

the  sole  power  of  declaring  a  forfeiture  for  breach  of  the 
conditions  of  such  mortgage;  and  the  said  Mayor  and 
Comptroller  insist  th'at  the  said  Board  of  Education  have  no 
lawful  authority  to  receive  and  hold  such  mortgage,  or  to 
receive  and  hold  such  interest  and  principal,  or  to  declare 
a  forfeiture  in  the  event  of  default  in  the  terms  of  such 
mortgage,  while  the  Board  of  Education  insist  that  they 
are  fully  authorized  to  take  and  hold  such  mortgage,  to 
collect  the  interest  and  principal  thereof,  and  to  declare  a 
forfeiture  for  breach  of  the  conditions  thereof,  and  demand 
that  your  petitioner  shall  execute  and  deliver  such  mort- 
gage to  said  board;  that  by  reason  of  the  disagreement 
between  the  Hoard  of  Education  and  the  Mayor  and 
Comptroller  of  the  city,  as  above  set  forth,  your  petitioner 
is  deprived  of  his  conveyance  of  said  premises,  and  is 
unable  to  complete  such  purchase,  and  is  greatly  injured 
and  damaged  thereby,  and  the  erection  of  a  passenger 
depot  thereon  is  greatly  delayed  and  hindered,  to  the 
prejudice  of  all  parties  in  interest,  as  well  as  of  the  public, 
and  your  petitioner  is  without  adequate  remedy  in  the 
premises,  except  by  a  writ  of  mandamus,  as  hereinafter 
prayed. 

Wherefore  your  petitioner  makes  the  said  John  A. 
Roche,  Mayor  of  the  city  of  Chicago,  and  the  said 
Augustus  H.  Burley,  Comptroller  of  said  city,  and  the 
Board  of  Education  of  said  city ,  parties  defendant  hereto, 
and  prays  leave  to  file  this  petition,  and  that  a  writ  of 
mandamus  may  issue  to  the  said  Mayor  and  Comptroller, 
directing  them  to  execute  and  deliver  to  your  petitioner 
the  conveyance  of  said  premises  so  submitted  to  and  ap- 
proved by  them    as    aforesaid,  upon  the   delivery  by   your 


petitioner  to  said  Board  of  Education  of  the  mortgage  and 
bond  above  set  forth;  and  that  said  defendants  may  be 
required  to  answer  this  petition,  and  to  show  cause,  if  any 
they  have,  why  the  writ  of  mandamus  should  not  issue  as 
herein  prayed. 

And  your  petitioner  will  ever  pray,  etc. 

John  P.   Neal. 

J.   L.   High, 

Jesse  B.   Barton, 

Counsel  for  Petitioner . 


State  of  Illinois, 
Cook  County. 


ss. 


John  P.  Neal,  being  duly  affirmed,  deposes  and  says, 
that  he  is  the  petitioner  named  in  the  foregoing  petition; 
that  he  has  read  the  same,  and  knows  the  contents  thereof, 
and  that  the  same  and  the  matters  therein  contained  are 
true,  as  therein  set  forth.       /I  Ss*r 

Subscribed  and  affirmbfi  be^e  me^ti^s^/  J>  day  of 
September,  1887.  ^^^/\//^^^^C/\      ^C€c<^_^ 
C^y  j.  E.  Rogers, 

Notary  Public. 


